Trends and Issues in Personal Injury

• Author: Bronagh O'Hanlon- Chloe O'Reilly - Niall Williams
• Pages: 107-120

IRISH JUDICIAL STUDIES JOURNAL

[2020] Irish Judicial Studies Journal Vol 4(1)

107

TRENDS AND ISSUES IN PERSONAL INJURY

LITIGATION

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Abstract: In this article the emerging trends in the trial and conduct of Personal Injury litigation in Ireland

is examined. This will be through analysis of the role of the judge in these cases and an exploration of

developments in statute and case law, with a particular focus on false and exaggerated claims and on s. 26

of the Civil Liability Act and Courts Act 2004. There is also a focus on debates surrounding damages

and costs in this area.

Authors: Ms Justice Bronagh O’Hanlon, Chloe O’Reilly, and Niall Williams

The Role of the Judge in Personal Injury Litigation

Posner has written that ‘the main purpose of the Separation of Powers is, in economic

terms, to prevent the monopolisation of the coercive power of the State …’

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A key question when examining issues in this area is the role the legislative and judicial

branches of state should have with regard to personal injury. The importance of an

independent judiciary cannot be overstated – and accordingly this has been given great

significance in our laws. Per Article 35.2° of the Constitution, ‘All judges shall be

independent in the exercise of their judicial functions and subject only to this Constitution

and the law’. Every person appointed to be a judge must take the oath set out in Article

34.6.1° of the Constitution the wording of which includes the phrase ‘without fear or

favour, affection or ill-will towards any man, and that I will uphold the Constitution and

the laws’.

This constitutional oath is taken very seriously by all members of the judiciary, and this

pledge of independence guides all decision making. A judge in personal injury actions can

no more have a policy of being in favour of insurance companies than they can be in

favour of plaintiffs for example.

In examining the Constitutional role of the judge, the Irish Supreme Court in O’Byrne v

Minister for Finance

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endorsed heavily the words of Dr Schwartz in American Constitutional

Law,

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when he wrote:

Ever since de Tocqueville, outside observers have emphasised the

primordial role of the judge in American society... Because of this high

responsibility the independence of the judiciary from both the legislative

and executive branches is the keystone of American constitutional

government.

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Maguire CJ in O’Byrne held that in the Irish context ‘these words can be applied without

alteration to the position of the Judges under our Constitution’.

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1

This article is based on a lecture given by Ms. Justice Bronagh O’Hanlon entitled ‘The Trial and Conduct of Personal

Injury Litigation’ presented at the annual Adrian Hardiman Memorial Lecture Series, 2 July 2019.

2

Richard A Posner, Economic Analysis of the Law, (6th edn, Aspen Law and Business 2002) 894.

3

[1960] 94 ILTR 11.

4

Bernard Schwartz, American Constitutional Law (1sr edn, ABC-CLIO 1969).

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[1960] 94 ILTR 11 [43].

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[1960] 94 ILTR 11 [43]-[44].